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This week, Everyday Health is publishing a series of articles about the calorie counts that will soon be required on chain restaurant menus across the country. This article looks at where the FDA stands with calorie count implementation.

If you're trying to lose weight, you may be counting calories. You might think that menus that include calorie counts will help you with that goal, and often they will. But sometimes, it turns out, they won't. A 2011 study from Tufts University found that a chips and salsa appetizer from the chain On the Border was advertised as delivering 430 calories. In reality, it contained 1,511. If On the Border was a weekly tradition for someone, they could be gaining a pound a month from those chips. Unfortunately, it's extremely difficult for the FDA to tell On the Border to change the label — as the law currently stands, restaurants only have to justify that their calorie counts were calculated on a "reasonable basis" of what the dish would contain.

Nearly one-third of the calories the average American consumes come from food prepared outside of the home, according to Margo Wootan, director of nutrition policy at the Center for Science in the Public Interest. That’s part of the reason for the 2010 Affordable Care Act’s mandate that chain restaurants with 20 or more outposts must start posting calorie counts of their food items, alongside the descriptions and prices of their offerings. If people are more aware of the number of calories they’re eating, the theory goes, they’ll be more able to control that number.

Regulation of Calorie Counts' Accuracy

How accurate these calorie counts will be, however, is still up in the air, as the FDA has not decided how the counts’ accuracy will be regulated. The implementation of the rule is listed as “delayed” on the FDA’s website (even before the government shutdown), meaning that “it has not been completed and the deadline has passed.” One aspect of the delayed implementation is that regulators are still trying to determine how accurate they can expect these calorie counts to be, Wootan said.

The FDA refused to clarify when the calorie counts were supposed to have been posted. "There are a number of complex issues involved, such as what types of operations should be covered, what written information should be required, how information should be displayed on menus and menu boards, and how do companies need to make these changes," Shelly Burgess, a media affairs team leader for the FDA's food, veterinary and cosmetic products office, said in an email. She also noted that the FDA was sifting through 900 comments from the public on the proposed rule, and "we are evaluating all of them before publishing a final rule," she wrote.

The FDA already regulates some calorie counts: those on the packaged foods you buy from the grocery store. In those cases, the FDA has ruled that the counts have to be within a window of 20 percent — meaning that the slice of bread listed as having 100 calories can have no less than 80 calories and no more than 120 calories. But for prepared, ready-to-eat food in a restaurant, making this calculation is much more complicated, according to Wootan. There are more ingredients in each item, and everything from how an item is cooked to who adds the final garnish or handful of fries affects the final count. For this reason, the FDA originally said that restaurants could not be held to this same standard of 20-percent accuracy.

Throwing Off a Balancing Act

For people who are trying to lose weight, counting calories is one of the most effective methods. As nutritionist Gayle Timmerman, PhD, RN, of the University of Texas at Austin School of Nursing, said, “The number of calories you need for weight maintenance is like a bank. You have a total, and when you go over, you gain weight. Go under, and you lose weight.”

However, if the calorie counts people see on menus are inaccurate, the balance they think they’re achieving may be wrong, which could render weight loss efforts futile. “If it’s in writing on a menu, people really take that at face value,” said Christina Roberto, PhD, a psychologist and epidemiologist at Harvard’s School of Public Health. Currently, the FDA is reviewing the comments it received on its initial proposal, which includes a suggestion that the “20-percent rule” should be mandated for prepared restaurant foods as well. However, based on the practicality of enforcing it, Wootan said she thinks “they’ll get rid of that 20 percent for restaurants.” Burgess of the FDA acknowledged that a number of the comments were about "compliance issues such as this," but did not say whether the FDA will change the rule."More specific information will be available when the final rules are issued," she wrote.

As stated on the FDA website, “FDA does not intend to impose an unrealistic regime (e.g.,to require exacting measurements or strict portion controls) in restaurants. However, the agency is requiring that a restaurant have a reasonable basis for believing that a food meets the nutrient requirements for a claim.”

Wootan also said that while the FDA hasn't explicitly outlined its plans for enforcement of the law, she believes that it will be able to partially rely on rivalries between chains to make sure no one chain ends up grossly misrepresenting their products. “It could be kind of a check and balance,” she said. “If McDonald’s was misleading people, Burger King would notice.”

Wootan explained that calculating the basic number of calories in each dish is not particularly difficult for most chains. “At most big restaurants, 80 percent have a dietitian on staff, and must have recipe analysis software,” she said. “They just have to run their recipes.” Some chains, such as Starbucks, have already started posting calorie counts across the country.

Some Calorie Counts Vary Dramatically

Because so many chain restaurants use standardized recipes and processes, their calorie counts tend to be reasonably accurate, according to a study done in 2011 published in the Journal of the American Medical Association. However, sit-down restaurants, which often include more cooking on-site and variation of ingredient amounts, have a more difficult time with accuracy, the study found. The dishes that stray furthest from what was predicted tended to be desserts and foods rich in carbohydrates, according to the study.

The study found that 19 percent of the food researchers from Tufts University analyzed had calorie counts 100 calories or higher than what had been listed. “Prior studies of the effect of menu labeling have taken posted calorie content of restaurant foods as accurate. This study suggests that this assumption is generally fair…however, some foods, especially sit-down restaurant foods, do have discrepancies,” the authors wrote.

Some of the most egregious offenders, in addition to the On the Border chips and salsa, include P.F. Chang's brown rice, which clocks in at 477 calories, not the advertised 190. And Olive Garden's chicken and gnocchi soup has 500 calories, not 250.

In addition to the potential for inaccuracy, there are several exceptions in the law regarding what must be listed.

“The alcohol industry managed to get an exception,” Wootan said, largely due to their own fight against the law. The FDA's Burgess would not comment on the alcohol industry's exemption. This could be problematic because alcohol is a top source of calories for adults, and the amount in a drink can really vary, according to Wootan. “A mudslide has 700 or 800 calories, depending on the restaurant,” she said.

Movie theaters are also exempt from the rule, which Wootan said she thought was unfair, because so many establishments offer what is essentially a full menu including hot dogs, nachos, and pizza. “Movie theaters can serve 1,000 calories in popcorn to someone, but the least they could do is tell them,” she said. Burgess also refused to comment on this exemption.

The FDA is still debating how to post calorie counts for items sold in vending machines. Companies are lobbying for a poster next to the machine, rather than counts being displayed for each level, but “the law requires it to be right next to the name,” Wootan said.

Whether these postings actually help people make smarter choices is currently the subject of ongoing research and debate.